GLP18 v Minister for Home Affairs

[2024] FedCFamC2G 756

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

GLP18 v Minister for Home Affairs [2024] FedCFamC2G 756

File number:

SYG 3475 of 2018

Judgment of:

JUDGE BLAKE

Date of judgment:

21 August 2024

Catchwords:

MIGRATION – Application for judicial review – failure to consider claim or component integers of claim – claim as advanced was considered – application dismissed.  

Legislation:

Migration Act 1958 (Cth) s 57, Pt 7AA.

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 24

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Division:

Division 2 General Federal Law

Number of paragraphs:

34

Date of hearing:

21 May 2024

Place:

Melbourne via Microsoft Teams

Counsel for the Applicant:

Mr Reynolds

Solicitor for the Applicant:

Asad Lawyers

Counsel for the Respondents:

Mr Johnson

Solicitor for the Respondents:

HWL Ebsworth Lawyers

ORDERS

SYG 3475 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GLP18

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	21 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application filed on 11 December 2018, as amended on 16 July 2019, be dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $8,371.30.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE BLAKE:

1. This is an application to review a decision made by the Immigration Assessment Authority (‘Authority’) on 15 November 2018. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (‘visa’). 

2. For the reasons that follow, I have decided to dismiss the application for review.

   BACKGROUND

3. The Applicant is an Iranian national. The Applicant arrived in Australia on 14 July 2013 as an unauthorised maritime arrival (Court Book (‘CB’) 214). He applied for the visa on 1 December 2016 (CB 97).

4. On 8 May 2018, the Applicant was invited to attend a Protection Visa Interview (‘PV Interview’). On 31 May 2018, the Applicant attended the PV Interview (CB 140).

5. On 14 September 2018, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa (CB 208).

6. On 21 September 2018, the decision of the delegate was referred to the Authority for fast-track review under Part 7AA of the Migration Act 1958 (Cth) (‘Act’) (CB 232).

7. On 15 November 2018, the Authority affirmed the decision not to grant the Applicant the visa (CB 246).

8. The Applicant filed his application for judicial review in this Court on 11 December 2018. The application was accompanied by an affidavit of the Applicant. The Applicant subsequently filed an Amended Application on 16 July 2019 (‘Application’).

9. The Applicant relied on the Application and written submissions. The Minister relied on his written submissions. The Minister also prepared a Court Book containing the relevant materials that I have had regard to.

   THE APPLICATION

   Grounds of Review

10. The Application contains four Grounds of Review. The Applicant only presses Ground 4, and has abandoned Grounds 1 – 3. Ground 4 of the Application is as follows:

    4.The IAA fell into jurisdictional error in failing to consider and deal with a claim or a component integer thereof.

    Particulars

    a)        There was a claim or component integer thereof before the IAA to the effect that the Applicant faced a well founded fear of persecution or significant harm by virtue of the Applicant's father being associated or involved with, or being perceived as being associated or involved with, with the Shirazi Group;

    b)        The IAA actually or constructively failed to consider and deal with this claim. It only considered whether the Applicant's father was a member of the Shirazi Group, and failed to make findings as to and deal with whether he was associated or involved with the group (or perceived as such) or the implications thereof as to the Applicant's claim.

    THE CLAIM ADVANCED BY THE APPLICANT

11. The claim referred to in Ground 4 above has its genesis in, and was first raised by, the Applicant’s representative in an email on 30 May 2018, immediately prior to the PV Interview.  In that email, the Applicant’s representative relevantly stated:

    [the Applicant] has also instructed:

    …but [ his] father travels to Iraq approximately two or three times per year generally for religious occasions and as part of the Shirazi Group. We are instructed that the Shirazi Group members travel as a group in a bus and assist [the Applicant’s] father to cross the border.

12. Following the email above, and the Applicant’s attendance at the PV Interview, the Applicant’s representative submitted post-interview submissions on 14 June 2018 (‘post-interview submissions’). In that document, the Applicant made the following claim:

    As noted at Interview, [the Applicant’s] father, [F], is a member of the Shirazi Group. [the Applicant] explained that his father, and at times his brother and mother, travel for short periods to Iraq from Iran with the Shirazi Group for religious events. We are instructed that [the Applicant’s] father is involved in organising community events for the Shirazi Group. We submit that while the Applicant is not a member or supporter of the Shirazi Group himself, he is at risk of significant harm in Iran due to his imputed political belief as being opposed to the Iranian government, given his family’s and particularly his father’s involvement.

13. I observe that in addition to making the submission above, the Applicant’s representative also referred to Country Information including the following:

    (a)that Iran’s prosecutor general had said that the country’s judiciary will take legal action against the supporters of Ayatollah Shirazi; and

    (b)supporters of the Shirazi Group staging a widely reported attack on the Iranian Embassy in London.

14. The Applicant’s representative enclosed photos purportedly of the Applicant’s father with Ayatollah Shirazi and Hossein Shirazi as ‘evidence of his father’s involvement in the Group’ (the photos are contained at CB 157-160). The Applicant’s representative submitted that given the Applicant’s ‘father’s involvement in such high-profile opposition to the Iranian regime, it will be imputed that [the Applicant’s] political opinion is also anti-government’.

15. On 5 September 2018 in response to an invitation under section 57 of the Act, the Applicant’s representative prepared and submitted a ‘Supplementary Statement’ that commences at CB 189 (‘Supplementary Statement’). At paragraph [15] of the Supplementary Statement, the Applicant stated as follows:

    I continue to fear harm in Iran because of my father’s involvement in the Shirazi Group. My father told me that he is banned from leaving Iran. I think this is because he is involved in the Shirazi Group but I am not sure. However, my father travels between Iraq and Iran with the Shirazi Group. They assist him to cross the border. The Shirazi Group are well-known for opposing the Iranian regime. I am scared that the authorities will think that I am also a member of the Shirazi Group. 

16. Also on 5 September 2018, in the formal ‘response to section 57’ sent to the Department, (‘Response Document’), the Applicant’s Representative states at CB 195 as follows:

    Imputed Political Opinion Due to Family Involvement in Anti-Government Group

    [the Applicant’s] father, [F], is a member of the Shirazi Group, a group that is fiercely opposed to the Iranian regime and the Iranian clerical establishment. We submit that given [the Applicant] father’s involvement in such high-profile opposition to the Iranian regime, it will be imputed that [the Applicant’s] political opinion is also anti-government. We also submit that imprisonment on the basis of imputed political opinion in Iran is likely to amount to both serious harm and cruel, inhuman and degrading treatment or punishment.

    We refer to our post-interview submissions of 14 June 2018 for further detail and country information on [the Applicant’s] imputed political opinion.

    [footnotes omitted]

    THE DECISION OF THE DELEGATE

17. The delegate dealt with the claim as follows:

    (a)the delegate noted that the Applicant:

    (i)claims to continue to fear harm in Iran because of his father’s involvement in the Shirazi Group;

    (ii)submitted photographs of his father in the company of other individuals;

    (iii)claims that about two to three times every year, his father travels between Iran and Iraq with the Shirazi Group, whose members assist the Applicant’s father to cross the border;

    (iv)stated that his father’s role with the Shirazi Group is to film religious activities, and that the group travels together in a bus; and

    (b)the delegate ultimately did not accept the Applicant’s father’s role with the Shirazi Group is of any relevance to the Applicant’s claims for protection.

    THE DECISION OF THE AUTHORITY

18. The Authority commenced by summarising the Applicant’s claims at paragraphs [5] and [8] of its reasons. At paragraph [5], the Authority stated the Applicant’s claims were that ‘his father is a member of the Shirazi Group, who opposes the Iranian regime and Iranian clerical establishment. His father is helped by the Shirazi Group to travel to Iraq 2- 3 times each year via bus for religious occasions’. At paragraph [8], the Authority in relation to the Applicant’s claims made in writing on 30 May 2018 noted ‘his father is a member of the Shirazi Group and he travels with them to Iraq two to three times per year for religious occasions. The Shirazi Group provides a bus and assists his father to travel across the border’.

19. The Authority then dealt with the claim at paragraphs [29]-[32] as follows:

    29.The applicant claims that due to his father’s membership of the Shirazi Group, which opposes the Iranian government, he may be imputed to hold the same political belief and this would result in him being at risk of harm in Iran. The applicant does not claim to be a member of the Shirazi Group. The applicant did not raise this as a claim until May 2018, the day prior to his protection visa interview.

    30.Four photographs were provided by the applicant, which he claims include his father in the company of Ayatollah Sadiq Hussaini Shirazi and Hossein Shirazi of the Shirazi Group. These four photographs appear to be from the same occasion. Three of the photographs show a man in a light blue business shirt seated with a person who is said to be Ayatollah Sadiq Hussaini Shirazi. The fourth photograph shows the same man in the light blue shirt seated near a person who is said to be Hossein Shirazi. There is no other evidence before me to confirm the male person in the light blue business shirt in the aforementioned photographs is the applicant’s father or that if it is him, that he is a member of the Shirazi Group. Merely being photographed in the presence of a senior member of the Shirazi Group does not prove membership of the group.

    31.The applicant claimed his father was banned from leaving Iran and he thought this was because of his father’s involvement in the Shirazi Group. There is no other evidence before me to support the applicant’s claim that his father is banned from leaving Iran, or if that if he is it is because he is a member of the Shirazi Group. Furthermore, the country information does not indicate that a person would be banned from leaving Iran purely because they are a member of the Shirazi Group.

    32.On the basis of the lack of evidence provided by the applicant in support of this claim and the fact that it was raised quite late in the application process, combined with the concerns stated above about the credibility of the information the applicant continues to rely on to support his claims, I do not accept that the applicant’s father is a member of the Shirazi Group.

    CONSIDERATION

20. The Applicant submits that he made the claim, and that the Authority did not deal with his claim. He says that he made a claim either expressly, or it arose from the material, that his well-founded fear of persecution arose from his family’s travel with the Shirazi Group for the purpose of attending religious events with them, from his father’s involvement with the group in assisting them and filming for them, and from the Iranian Government’s interest in prosecuting supporters of the group. The Applicant says that instead of dealing with this claim, the Authority only dealt with that part of the claim that his father was a member of the Shirazi Group. The Applicant submits that by dealing only with his father’s membership of that group, the Authority failed to deal with the component integers of the claim.

21. The Minister says the submission above should not be accepted. The Minister submits that the claim was always that the Applicant feared persecution because his father was a member of the Group, and by being a member, he was involved in the group. The Minister submits that no claim was ever advanced that the Applicant’s father was involved in the Shirazi Group otherwise than as a member.

22. There was no dispute between the parties as to the principles to be applied in relation to the obligation on the Authority to consider claims. Those principles can be found in cases such as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; Dranichnikov v Minister for Immigration [2003] HCA 26; and Htun v Ministerfor Immigration and Multicultural Affairs (2001) 194 ALR 24.

23. The first issue is this: was a claim made as suggested by the Applicant (or did it arise from the material) that went beyond the Applicant fearing persecution because his father was a member of the Shirazi Group.

24. As noted above, the claim was first advanced on 30 May 2018, the day before the Applicant attended for the PV Interview. The email correspondence in which the claim was articulated dealt briefly with a range of matters prior to the PV Interview, including who would be in attendance at the interview, and the attachment of a Form 956. It is plain that the claim as first raised on 30 May 2018 was raised in summary form. This is apparent not only from the nature of the email correspondence, but also from the content of the claim as then drafted. The email simply alerted the recipient of the email to the father’s travels as part of the Shirazi Group and the assistance the Shirazi Group gave to the Applicant’s father. There is no claim, for example, that the Applicant fears harm because his father is part of the Shirazi Group. The email does not even use the word claim. It only alerts the reader to the fact that the Applicant has ‘instructed’ in relation to the Applicant’s father travelling with the Shirazi Group.

25. There is not a transcript before me of what occurred at the PV Interview. It is apparent however, that the matter of the Applicant’s father’s travels with the Shirazi Group were raised. This can be seen from the post-interview submissions which directly reference some discussion of this topic at the PV Interview.

26. It appears that the first time this claim was raised clearly in writing was in the post-interview submissions. There, the claim was properly articulated for the first time. I have set out the relevant part of this document earlier. The opening words of the paragraph extracted above (that are contained within the post-interview submissions) are significant. The claim is framed at commencement as the Applicant’s father being ‘a member of the Shirazi Group’. What follows is a description of the Applicant’s father’s (and other family members) activities, including travel to Iraq for religious events, and involvement in community events for the Shirazi Group. The description of the activities undertaken by the Applicant’s father and other family members are all, when the document is read, to be activities undertaken in the context of the opening statement of that paragraph that the Applicant’s father is a ‘member’ of the Shirazi Group. There is no separate claim (and nor does it fairly emerge from the material) that the Applicant’s father was involved with the Shirazi Group, other than as a member.

27. The Supplementary Statement does not advance the Applicant’s case. While it is true that paragraph [15] of that document only refers to the Applicant father’s ‘involvement’ in the Shirazi Group, and does not mention membership, the statement has to be read in the context of how he framed the claim earlier. He did not state expressly in this document that his father’s ‘involvement’ in the Shirazi Group was independent of the claim he made earlier (or in the post-interview submissions) in respect of his father’s membership of the Shirazi Group. This document also be needs to be read in conjunction with the Response Document that I have referred to above (CB 195).  

28. The Response Document is of some significance. This is because whatever doubt may have existed about the content of the Applicant’s claims to that point in any of the earlier correspondence or submissions, this was an opportunity to clarify the substance of the claim. I have set out the relevant extracts from the Response Document earlier in these reasons. It is significant that the claim commences with the assertion that the Applicant’s father ‘is a member of the Shirazi Group’. Unlike the manner in which the Applicant has previously expressed this claim, the Applicant makes no reference to any other activities undertaken by his father including travel, attendance at religious events or attendance at community events. The claim is put that the Applicant’s father is a member, and that the Applicant’s father’s involvement will be imputed to the Applicant as anti-government. The Applicant’s representatives then refer back to the post-interview submissions that are said to provide ‘further detail and country information’. As I have already noted, the post-interview submissions and the descriptions contained therein are advanced on the basis that the Applicant’s father was a member of the Shirazi Group. The Response Document therefore emphasises what was contained in writing in the post-interview submissions – the claim was the father was a member of the Shirazi Group.

29. The Applicant was represented throughout the proceedings. The representatives provided two sets of formal submissions on 14 June 2018 and 5 September 2018. In each of those documents, they referenced the Applicant’s father’s membership of the Shirazi Group. In the submissions of 14 June 2018, they went on to describe activities of the Applicant’s father that can only be read as being activities that flowed from his membership of the Shirazi Group. At no stage did the Applicant’s representatives assert or claim that the Applicant feared harm (independent of his father’s membership of the Shirazi Group) because of the Applicant’s father’s involvement with members of the Shirazi Group (whether for travel, community, religious or other events). Nor can such claim, in my view, be said to emerge from the material.

30. In my view, having identified the claim advanced as being based upon the Applicant’s father’s membership of the Shirazi Group, the Authority proceeded to deal with, and disposed clearly of that claim at paragraph [32] of its reasons.

1. It was not clear in the hearing before me whether the Applicant also sought to assert that the existence of the photographs he tendered of his father with persons who are said to be members of the Shirazi Group by itself was a basis on which the Applicant feared harm, and that was also not dealt with. To the extent that submission is put before me, I note that the Authority dealt with this claim. It said that there was no evidence to confirm the person in the light blue business shirt in the photographs is the Applicant’s father (as put by the Applicant), or if it was him, that he is a member of the Shirazi Group. The Authority expressly noted that being photographed in the presence of a senior member of the Shirazi Group does not indicate or prove membership of the Group.

2. I also observe that the Applicant never claimed that he was a supporter of the Shirazi Group. His only claim was that he was concerned about being imputed as having anti-government views because of his father’s membership of the Shirazi Group.

3. When all of the above is considered, this Ground of Review must fail, and the Application must be dismissed. The claim advanced by the Applicant was that his father was a member of the Shirazi Group. He described activities undertaken by his father which could only be understood as occurring in the context of his father’s membership of the Shirazi Group. The Authority dealt with the claim that was before it. On a proper and fair reading of the material and the reasons of the Authority, given the Applicant was represented, the claim that the Applicant feared harm from his father’s involvement with the Shirazi Group (independent of membership of the Group) was never put, nor does it emerge from the material.

4. The Minister sought costs of $8,371.30. These costs are sought on the basis of the scale of costs applicable in this jurisdiction. Given the Application has been wholly dismissed, and the Minister has been entirely successful, I will award costs to the Minister in the amount of $8,371.30.   

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate: B Eyoel

Dated:       21 August 2024